Citation Nr: 0634319 Decision Date: 11/07/06 Archive Date: 11/16/06 DOCKET NO. 03-36 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from June 1957 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT A respiratory disorder is not attributable to service. CONCLUSION OF LAW A respiratory disorder was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in July 2002 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Thereafter, the veteran was again sent letters from the RO in December 2003 and March 2006. The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The RO's letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran was also sent a letter form the RO regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report symptoms, he does not have medical expertise. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Rather, medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10-to-45 or more years between first exposure and development of disease. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In this case, the record shows that the RO complied with M21- 1 procedures. The RO sent the appellant a letter in November 2002 requesting dates and places that the veteran was exposed to asbestos in service, the names of the devices that emitted the asbestos while in service, his military occupational specialty (MOS) at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre-and post service, his complete medical history, and a detailed description of activities during the period of exposure. In addition, the veteran's service records were obtained which showed that the veteran's MOS was as a mess cook, which is not one of the occupations involving exposure to asbestos per M21-1. The veteran, in written correspondence and during his personal hearings, maintains that he was exposed to asbestos during his service in the Navy. He claims that he was exposed on the flight line, aboard ship, and performing laundry duties. He stated that he was not provided any breathing protection apparatus. He submitted a lay statement from a service buddy who indicated that the veteran performed work as a mess cook, in the laundry area, and cleaning. This individual did not provide any information regarding asbestos exposure. The Board further notes that a person performing laundry duties is also not one of the occupations involving exposure to asbestos per M21-1. There is no objective evidence that the veteran was exposed to asbestos while serving in the Navy. The veteran did not serve during World War II. Further, as noted, the service records do not show that the veteran had a major occupation typically involving exposure to asbestos. M21-1, Part VI, 7.21(b)(1); see also VAOPGCPREC 4- 2000. The veteran does not have the medical qualifications to state that he was exposed to asbestos during service which lead to post-service diagnoses of asbestos-related lung disability. See Espiritu. The service medical records are negative for any complaints, findings, treatment or diagnosis of a lung disorder. Post- service, the veteran was diagnosed as having asbestosis in 1995, by R.A.H., M.D. This physician noted that the veteran was exposed to asbestos products from 1961 to 1972, during his employment at a metal manufacturing facility. This occurred after his separation from service, and no inservice exposure to asbestos was noted. Subsequent VA records also show that the veteran has been diagnosed as having chronic obstructive pulmonary disease (COPD) and fibrotic changes or atelectasis. It was noted that the veteran had a history of asbestos exposure. No VA examiner related any diagnosis to service or dated the asbestos history to service. In sum, the service medical records are negative for lung disease or injury. There is no diagnosis of lung disability for approximately 25 years after the veteran separated from service. A private examiner provided a diagnosis of lung disability which he related to asbestos exposure, which he dated as occurring post-service. Thus, with regard to the claim involving asbestos exposure, the military records do not demonstrate evidence of asbestos exposure during service, there was post-service occupational exposure, and the competent evidence establishes an etiological relationship between post-service asbestos exposure and the claimed disease. Even assuming only for the sake or argument that the veteran had inservice asbestos exposure, the competent evidence establishes that there was also significant post-service exposure to asbestos. The private physician indicated that the veteran's asbestosis was due to the asbestos exposure which occurred in the veteran's post-service occupation at a manufacturing plant, which is consistent with M21-1 stated occupations with risk of asbestos exposure. Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). In light of the foregoing, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for a respiratory disorder is denied. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs